Friday, December 4, 2009

Immoral contracts

Disclaimer: Being neither a legal philosopher nor a lawyer, I ask that the following be taken with a grain of salt.

Start with this argument as background:

There is never an on-balance reason to do something immoral.

It is immoral to press someone to do something immoral.

Therefore, there is never an on-balance reason to press someone to do something immoral.

Now, let's stipulate that a contract is performance-immoral if one of the contracted actions is immoral. There are other ways a contract could be immoral, of course. It could, for instance, be that one party contracts to do some work ignorant of the prevailing payscale while the other party severely underpays. But such a contract would not be performance-immoral—it would not be immoral to do the work and it would not be immoral to pay the money.

Now, add this observation:

Enforcing a contract is at least partly constituted by pressing the parties to perform the contracted action.

This is consistent with the fact that contemporary American civil jurisprudence tends not to force performance, but only requires monetary compensation. For it is, nonetheless, the case that such requirements when they go beyond merely refunding moneys paid exert pressure to perform, and indeed the institution of the enforcement of contracts is intended to exert such pressure.

Finally, let us add a very weak and uncontroversial liberal premise:

The exertion of pressure by the state on a citizen is only permissible given an on-balance reason to exert that pressure.

It follows from (1)-(5) that

It is not permissible for the state to enforce a performance-immoral contract.

While there used to be a common-law doctrine of immoral contracts that said this—so, for instance, you couldn't sue a concubine that you had made an advance payment to but who refuses to live with you—I am told that in the case where the immoral action is legal, the doctrine is no longer a part of current American jurisprudence. Be that as it may, if the argument is sound, it clearly ought to be.

This doctrine of the unenforceability of performance-immoral contracts would have some interesting and far-reaching consequences. For instance, if you're a pornographer, many of your contracts would end up being unenforceable. This would not destroy the pornography industry, but would make it significantly harder for larger pornographic businesses to operate. (That said, despite the value of small businesses, I do not know whether small pornographic businesses are preferable to large ones.)

Another interesting consequence of the argument would be the conditional that if same-sex sexual activity (SSSA) is immoral, then the state is not permitted to recognize a same-sex marriage (SSM). For a marriage is, among other things, an agreement to engage in a shared life of a sexual nature.[note 1] But if SSSA is immoral, then to engage in a shared life of a sexual nature with someone of the same sex is immoral. And for the state to recognize a contract always involves a measure of enforcement at least by means of public opinion. Thus, the recognition of a SSM would be an enforcement of a performance-immoral contract, and that is not permissible to the state. Of course, this is all predicated on the assumption that SSSA is immoral, an assumption that the proponents of SSM will not grant. However, the conditional that if SSSA is immoral, then SSM ought not be recognized is itself an interesting conclusion, since people like John Rajczi have argued that even if SSSA were immoral, the state ought to recognize SSMs.

I think the best way to challenge my argument is to challenge the conjunction of (3) and (4) by using Double Effect kind of reasoning. The pressure in (3) is either intended or not. If the pressure in (3) is not intended, then (3) is false. For it is permissible to do things that put pressure on others to act immorally, if the pressure is not intended to do that. For instance, by asking someone to whom we've lent money for our money back, which we may well have a right to do, we might put some pressure on them to steal the money. So the pressure in (3) must be intentional. But then for the validity of the argument, the pressure in (4) must also be intentional. However, one might argue that the state's enforcement of contracts is not intended to press for performance. It is, instead, intended to press for the disjunctive state of affairs of performance or compensation.

I am not sure about this response. But it does seem that if we agree with this, then we should distinguish, strictly speaking, the state's recognition of a contract from the state's enforcement of it. The enforcement consists, then, in pressing for performance or compensation. But the recognition presses by means of public opinion—contract-breakers are not well thought of—for performance. There is, I think, some reason to distinguish recognition from enforcement. We should not recognize a contract with a graphic designer to draw a square circle—the contract is null and void on grounds of impossibility. However, we could press for performance or compensation. If this is right, then the argument would show not that it is wrong for the state to enforce a performance-immoral contract, but that it is wrong for the state to recognize one.

Thus the state could still enforce contracts between pornographers and their printing or DVD pressing shops, without recognizing these contracts. However, if SSSA is immoral, the state still could not recognize SSM, though it could enforce marriage-like contracts between persons of the same sex. But by calling it a marriage, it would be recognizing such contracts, and this the state has no right to do if the contracts are performance-immoral. This could make it possible for one to have a principled reason to disallow SSM while allowing the state to enforce the contractual aspects of "same-sex unions". (This post is also an experiment: will everyone be put to sleep by the stuff on contracts before they get to the sex stuff.)

Interesting - if this weren't a Friday I'd be reading this in much more detail. I feel like something is amiss, but it'd be stupid of me to comment with my brain halfway out the door already, so I'll wait for a bit.

Not being a trained philosopher but merely someone trained in (commonwealth) law with an interest in legal philosophy, I am wondering how the state can enforce a contract it does not recognise? (or are we using the terms differently?)

At law, at least in the commonwealth jurisdictions, the process for enforcement, be it a solution from the law, such as compensation, or an equitable remedy, such as performance, first requires the recognition of a contract before the consideration of breaches and remedy can arise. The contract's recognition is prior to enforcement.

If the court was asked to decide on the contract with the graphic designer to draw a square circle, it would probably find that it fell over on the grounds of consideration (consideration being the things of value moving between the parties). One party is offering money, the other is offering the square-circle. The square-circle is arguably not a thing of value as it is an impossibility and things of value must be real (in contract law at least). It could also raise issues around other key components of a contract such as capacity; if one party really believed it could deliver a square circle then issues of soundness of mind might arise. On the other hand, intention to create legal relations would arise if the party did know that he or she could not deliver the square circle then from the outset he or she never intended to perform) as well.

In the absence of the key elements of a contract being present you are quite right to conclude that the contract would be deemed null and void. However failure of this sort means that there never was a contract. Therefore talk of enforcing it in spite of this is something I find strange.

BTW not sure if American civil jurisprudence is the same as commonwealth on this score but performance is typically enforced when it would be inequitable to simply award monetary compensation. Consider a contract with a builder to build a house, if the contract falls apart, you can find another builder so financial compensation is adequate but if the contract was for me to sell you the Mona Lisa, then you cannot just go off and buy it from someone else because there is only one; performance is necessary.

I used "enforcement" in a non-technical sense. I was thinking of a case like this. Suppose I come up to you and offer to tell you how to trisect an angle with ruler and compass for a fee. You don't know that this is logically impossible, so you pay me. Now maybe the contract is null and void, since it is logically impossible of performance. But morally speaking it is clear that I owe you your money back. By "enforcement" I just meant this kind of compensation.

Another example: Suppose I promise to write a term paper for someone else for $50, and they give me $50. I take the money and don't write the paper. While the contract is immoral (and in some jurisdictions illegal, I think), nonetheless if I do not perform, I have a moral duty to give you back your $50. The law in a particular jurisdiction might not require me to give it back, but morally speaking it does not seem wrong for the state to require me to give it back.

"Compensation" would have been a better term than "enforcement". So then we can say that (a) immoral contracts may not be recognized or enforced, but (b) sometimes compensation in the case of an immoral contract might be morally appropriate. I think this only terminologically changes what I said.

What if you challenged 1. Alan Donagan refers to situations he dubs perplexity secundum quid which he attributes to Aquinas. Perplexity secundum quid refers to a situation where by breaking one moral prohibition you entangle yourself in a situation, in which, whatever you do, you must break another. Donagan suggests in these situations there exist what he calls “contrary to do duty prescriptions” to do the least grave wrong. If this is correct then in these situations the you would have overriding reasons to do what is wrong.

Now couldn’t a case where one enters into an immoral contract plausibly be a case of perplexity secundum quid: you contract to do something immoral and now are in a situation where either you perform the immoral action, or you do not follow through on your contract and as a result wrong someone in another way.

If this possibility were actualized one could argue that the contractor has reason to do the lesser of the immoral actions and perhaps this reason could justify enforcement of an immoral contract in certain circumstances.

Alex you mean a partly performed contract, which is where one party has completed or attempted to complete their part of the bargain in good faith. The law, at least in my neck of the woods, generally requires the parties to be restored to their pre-contract positions if the contract is deemed to not be a contract in this situation.

Where someone induced another into a contract by making a fraudulent or dishonest promise they may also be at risk of punitive damages in addition to their obligation to restore the other party.

(Not sure that any of this helps you rather interesting philosophical idea.)

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I am a philosopher at Baylor University. This blog, however, does not purport to express in any way the opinions of Baylor University. Amateur science and technology work should not be taken to be approved by Baylor University. Use all information at your own risk.